44 Envtl. L. 373 (2014)
This Article considers when activities that are inconsistent with wilderness are nonetheless allowed in it. That result happens in four different ways: (1) Congress decided not to designate an area as “wilderness” even though the area possesses wilderness characteristics; (2) Congress draws the boundaries of a wilderness area to exclude land that possesses wilderness characteristics because Congress wants to allow activities there that would be forbidden by the Act; (3) Congress specifically authorizes otherwise prohibited activities when it establishes a new wilderness area; or (4) Congress acts to approve contested activities in response to a controversy that arises after a wilderness area has already been established. Only Congress has the authority to designate wilderness areas, and how Congress has used that authority both to establish over 100 million acres of wilderness areas and to exclude certain wild places because Congress does not want them managed as wilderness. Congress employs wilderness boundaries that separate land subject to the land use regulations of the Wilderness Act from land that is free from those regulations to achieve even finer distinctions between land use that is regulated by the Wilderness Act and land use that is not. The exceptions contained in the Wilderness Act allow activities that are otherwise prohibited by the Act. And Congress sometimes creates additional exceptions to the Wilderness Act’s general rules both in the statutes establishing new wilderness areas and in statutes enacted in response to controversies about the use of a wilderness area. This combination of stringent restrictions and appropriate exceptions is what has made the Wilderness Act so successful for fifty years.
John C. Nagle,
44 Envtl. L. 373 (2014).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1133